CRA-408-2015 (UNION OF INDIA Vs M/S APPOLLO STONES LTD. PRATAPPURA TIKAMGARH) 29-10-2015 Shri Sushrut Dharamadhikari, learned counsel for the appellant. This application filed by the appellant under Section 378(4) of the Cr.P.C. seeks leave to file second appeal against the judgment of the Sessions Court whereby, the first appeal filed by the appellant and the judgment of the Lower Court acquitting the respondents was decided vide order dated 18.11.2006. At that time also, before filing of this appeal before the Sessions Court, the appellant approached this Court for the purpose of seeking liberty to file an appeal against the judgment even that, such application was not required to be filed before this Court and in any case the appeal could have been filed directly before the Sessions Judge. In any case, when an application under Section 470(1) (3) read with Section 473 of the Cr.P.C. was filed by the appellant and, they were allowed to present the appeal in the Sessions Court, still, vide order dated 19.04.2007, they failed to file an appeal for about six months. The appellate Court therefore, dismissed the appeal on the question on delay in filing of the appeal. Paragraphs 12 and 13 of the judgment are relevant which are as under:-
12. This is an appeal against the judgment of acquittal under S. 378 of the Code. In the case of State (Delhi Administration) v. Dharampal. AIR 2001 SUPREME COURT 2924=2001 AIR SCW 4385 distinction between S. 378 (3) and 378 (5) of the Code has been considered and it has been laid down by Hon'ble the Supreme Court that ''S. 378 makes a distinction between an appeal filed by the State Government or the Central Government who only need to obtain 'leave', and an appeal by a complainant who needs to obtain 'special leave'. The limitation provided in sub-section (5) is only in respect of applications under sub-section (4) i.e. application for special leave to appeal by a complainant. A complainant may be either a public servant or a private party. If the complainant is a public servant then the period of limitation for an application for special leave is 6 months. If the complainant is a private party then the period of limitation for an application for special leave is 60 days. The period of 6 months and or 60 days do not apply to appeals by the State Government or the Central Government continue to be governed by Art. 114 (a) of the Limitation Act. In other words, those appeals must be filed within 90 days from the date of the orders appealed from. Sub-section (5) of S. 378 applies only to application for special leave by a complainant. Sub-section (5) of S. 378 has no application to an appeal by the State Govt. or to an application for leave under sub-section (3).''
13. In the light of above legal position, present appeal shall be governed by the provisions of Article 114 (a) of the Limitation Act which provides limitation of
90 days for filing an appeal against the order of acquittal under sub-section (1) or (2) of S. 417 of the Code, 1898 (S. 378 in new Code, 1908). Looking to the facts of the application, S. read with S. 14 of the Limitation Act shall also be applicable. It is for that reason, once the time available was not utilized by the appellant to file the appeal under Section 14 of the Limitation Act was not applicable in this case, application for condoning the delay of 187 days was dismissed. Some more paragraphs i.e. 16 and 17 of the judgments which are relevant, are reproduced hereunder. The appellate Court also took note of various judgments on the issue and finally while dismissing the appeal on the pont of Limitation Act was observed like this:-
23. In the present case, time spent in the proceedings before Hon'ble the High Court and in obtaining the certified copy of the order dated 30.04.2012 is excusable but there is no reason of delay has been shown for the period of 09.11.2006 to 18.04.2007. The reason for delay of the period from 24.05.2012 to 26.11.2012 shown in the application is not believable due to not filing any document even any affidavit in support of the application. Therefore, it is clear that the delay for filing this appeal is not bona fide and the same cannot be condoned. Hence, the application under Sections 470 (1), (3) read with S. 473 of the Code is dismissed.
24. Since, the appeal is hopelessly barred by limitation; there is no need to go on the merits of the appeal. Hence, this appeal stands dismissed as barred by limitation. In view of the dismissal of the appeal on the point of Limitation, the question of grant of further leave to appeal to the appellant to file an appeal against the judgment does not arise. Accordingly, the petition stands disposed of. (MOOL CHAND GARG) JUDGE